DLA Nut allergy

I have an appeal for a 13 year old with a severe nut allergy.  He has only had one bad episode and taken to hospital but his mother is so vigilant everywhere they go he has not had any more.  She is arguing that the whole family is affected as prior to going anywhere she checks out if nuts are on premises, checks all his food etc.  Is there any caselaw to cover nut allergies.  My worry is he is 13 but his mum said he is only a child and not capable of checking everything.  She is claiming frequent attention and supervision

No caselaw that I’m aware of, but I think she’s going to struggle;

1. Checking the contents of food and checking whether ‘nuts are on the premises’ is, I think, supervision rather than attention. Even on those occasions where mother actually finds that nuts are in the food contents or are on the premises, I cannot see how the steps that she would then take could amount to attention (short, perhaps, of the extreme instance where she realises at the last second that a sandwich has nuts in it and grabs it out of son’s hands as he’s about to put it in his mouth) as the necessary intimate connection with son’s bodily functions is lacking.

And if it’s not attention, then that rules out the frequent attention throughout the day route…..

2. Assuming it is supervision, is it then continual supervision throughout the day?

The difficulty I can see with this is will be evidencing what happens when he’s not in her presence. I assume he’s at school and not home schooled - this takes him out of her presence for a sufficiently large portion of the time (school hours 5 days a week) to undermine continual supervision unless that supervision is being provided by school staff. My hunch would be that it isn’t and that staff at school are not so hyper-vigilant as mum.

I could be wrong though, and it could be that they’re watching him like a hawk every moment he’s on the premises (not saying that is what is required for ‘continual supervision’ btw). If the continual supervision is in fact being provided at school and mum can evidence this then maybe there’s some legs in this, otherwise not…..

It’s not caselaw that’s needed with this, but strong evidence…..

Hi
Thanks for that I’m really struggling and the mum is adamant that he requires frequent attention.  I think this will be a tribunal where I say Mrs so and so would ask you to consider!!!!

caselaw wise i think a comparable situation might be epilepsy and seizures so its maybe worth looking at those.

if there is evidence to suggest that any contact with nuts could potentially be life threatening then it maybe gives more weight to the need for supervision as someone needs to be available to give emergency meds?

Ive been on flights before where they havent sold nuts as someone on the plane has an allergy….is it that bad the school have had to put in place a policy like that?....even then though im not sure if thats supervision if a blanket ban works?

Worth remembering continual supervision is not the same as continuous (and there is case law on that) and that it’s about the need for reasonable supervision rather than the supervision received (and there’s also case law on that). A mathematical approach to frequent and continual has also (continually) been deemed inappropriate and there’s also… well I’m sure you get the idea :).

As case law has long pointed out a young child only has to run into the road once… etc. It’s not about how often something might occur. It’s about a balance of consequences and frequency. Steve’s observation re: case law on epilepsy is spot on, especially in regard to frequency and the lack of warning. This has happened once and he was hospitalised. Nobody knows when and where episode two will occur nor the consequences. The evidence so far does suggest they are potentially very serious.

Obviously supervision received is influential but it’s also not the beginning and end of the case. What he needs and what he gets may be two different things but that doesn’t mean that not getting proves there is no need.

Who has not battled with a school to understand that in loco parentis does actually mean being proactive occasionally! I have a child with a subsiding dairy allergy and a hearing impairment. No matter what has been put in writing to the school it has had to be repeated every year for 6 years now (and often every term) and we have yet to see what is on the school record being communicated to the class teacher without fail. When we communicate it to the class teacher directly it is noted, but 9 out of 10 times forgotten and rarely communicated to teachers involved in school trips or other lessons where we have to spell it out all over again. That’s hardly a unique experience.

There is also an assumption that all this supervision is done by adults. I would think it likely that his mates would be aware of the issue and thus effectively potentially involved in supervision consciously or otherwise.

That said, Mum needs a clear and coherent explanation re: DLA and the distinction between attention and supervision and to understand that any checking she does in advance will lack sufficient proximity to the cared for person to be relevant to either attention or supervision. He doesn’t need to be around whilst she does that although it may help him take it more seriously. I agree this is a supervision case not attention but I also think it is a winnable case provided the appellant is clear on what she’s going for and the evidence, rather than case law, is there to back this up. Personally I wouldn’t take the case if you have explained that it’s not attention and she persists on proceeding on that basis. Damages her case and your future credibility. Nothing that can’t be fixed at this stage though. 

I would think GP records; clear record of diagnosis; hospital discharge notes for starters. Copies of what has been said to the school (letters or emails). Copy of the school records and so on.

I think this will be very difficult to argue.

Even in the case of continual supervision, could it not be argued that, once it has been established that there are no nuts on the premises, there is inherently no risk to the child to warrant continual supervision? As has been suggested, airlines don’t sell nuts on a flight if a passenger is allergic - could similar ‘reasonable adjustments’ be made by others to obviate the need for continual supervision?

Mike’s point about reasonable supervision rather than received supervision is spot on, but again I wonder if supervision is really ‘reasonable’ once it has been established that there are no nuts in the vicinity? By the mum’s admission, she checks if nuts are on the premises and she checks his food anyway, so I would struggle to be convinced that the need for continual supervision is actually ‘reasonable’, given her precautions to make sure there are no nuts around. I think there’s a distinction between epilepsy and seizures, as they may occur spontaneously and with no trigger or warning, whereas an allergic reaction occurs when he comes in contact with an allergen. So it could be said that supervision is only needed when nuts are on the scene, but not otherwise.

I, myself, have a severe allergy and have to carry adrenaline pens everywhere I go - but I can’t see any reasonable need for me to be “continually supervised”. I believe all patients with such anaphylactic allergies are now trained (or at least should be) in using their autoinjectors, so even in the event of an allergic reaction, could he not be expected to inject himself? I realise he’s still only a child, and if he were younger than 13 I’d understand the difficulty, but I would have personally thought that most 13 year olds should be capable of injecting themselves if necessary.

Edit to add: Case law isn’t supportive. CDLA/1880/2007 involved a child claiming DLA on the grounds of continual supervision for a nut allergy (in addition to attention needs for depression). Rejected at FtT on the grounds that:

“Whilst there had been the one incident when she was taken to hospital having consumed a curry she was able to deal with her condition for herself for most of the time. She knew that if she had something to which she was allergic she could take Piriton and carried this with her. She also carried an Epi-pen and had been trained in its use but had never actually used it. The tribunal concluded that the risk of danger to [the claimant] was very slight. In looking at the school report and what actually happened the tribunal concluded that she did have common sense and awareness and that if faced with a situation in which she suffered an allergic reaction she would be able to cope alone and indeed had done so in the past.”

Although the UT set aside the decision due to the way the tribunal handled the evidence relating to depression, Deputy Commissioner Ovey mentioned “In her original grounds of appeal the claimant did not pursue the question of supervision. In my view that was a sensible decision”

Not very encouraging.

Even if he’s not capable of self-injecting, I’d have thought that members of school staff would have been given the necessary training?

And going back to Mike’s point about the issue being about what is needed rather than what is received…...that is, of course, correct. But if that ended up being the argument (i.e. he doesn’t get the supervision he actually needs at school) then if I were running the appeal I would want to be able to evidence that - i.e. with examples of his actually facing greater risk at school because the required supervision isn’t provided;

- e.g.  - where/when did the incident that resulted in hospitalisation take place? At school or whilst in the parents’ care? How long ago was this? (may be relevant if a number of years ago as opposed to recently - the argument could be that he’s now matured enough to take some responsibility himself).

- are there significantly more incidences of his having to use the adenaline pen (assuming he has one) at school as opposed to outside school? Any incidents of his having to use the pen or it having to be administered would have to be logged by the school and the records made available to mum if she requested…..

Not taking issue with the principles of what Mike’s posted on the question, but this stuff needs to be explored - without the kind of evidence that I’ve outlined above, there’s a risk that the tribunal might conclude (not unreasonably) that what he actually needs is what the school provides - and that mum is over-protective.

Past Caring. I think we’re at the stage where the OP should have identified a need for significantly more information/evidence than we have here. I agree with all your points. A number of other observations:

The OP says “severe”. One incident is not always going to be evidence of severity so the question is really about what subsequent investigations and testing took place to establish severity. Bear in mind that severity is often established by the lack of subsequent investigations but you’ll still need someone to evidence that. To say “we didn’t test further because…”. Further tests generally indicate a mild reaction. A hospital admission certainly fits with a “severe” diagnosis but not necessarily.

My child had an allergic reaction sufficiently violent to trigger a Stevens Johnson episode. (If you don’t know what this I would urge you to not look for it as illustrative images are not especially pleasant). We already had an immunologist (as there was no immune system) but no further tests were done because it was assumed the reaction was to either Ibuprofen or a particular group of antibiotics and the reaction was so severe that testing would have been deemed unethical.

I’m not sure an Epi Pen is directly relevant. It would not be the norm to give one to anyone under 16. NHS guidance suggests the approach is that the school is expected to hold 2 Epi Pens and to be capable of administration. Some obvious questions then fall out of that in this case. The child and school would be expected to have a plan around their health also, so, a copy of that too in evidence I would think.

Jos, Good find but I’m not sure that case law is necessarily fatal to a case like this. Reading between the lines it tells of a case where anaphylactic shock was alleged but not proven and the child deemed mature enough to use an Epi Pen but no compliance with NHS guidance; no health plan in place in school etc. which kind of suggests it was an over-reaction. If this case turns out like that (and at present we’re also looking at only the one initial admission as I read it) then fair enough but that case certainly reads like over anxious mother taking precautions beyond what were necessary and the medical profession going along with it. Certainly, if you have an accepted severe allergic reaction you don’t tend to get Piriton and an Epi Pen. You get one or the other.

I don’t think the point about having checked for the presence of nuts is fatal to anything either. Cross contamination is not uncommon (nice read of the studies on what resides on the surface of peanuts on the bar in a pub should suffice as evidence for that!). The check and the conclusion of the check are part of the process. I don’t think they’re supervision at all. The point is that contamination is well evidenced as being generally accidental; often in foodstuffs certified as free of nuts and is often airborne and undetectable. The argument is that the child needs supervision because what the mother gets told is nothing to the point. She supervises in anticipation of a reaction whenever and wherever it occurs. If this is indeed “severe” (and clearly “our” jury is out on that at present) then anticipatory supervision is perfectly reasonable.

The other angle on this of course is that there’s some interesting research about the impact of nut allergies (as opposed to intolerances) on the patient and their family. The allergy induces a huge amount of stress in children regardless of how well prepared they are or what plan is in place and in itself that could trigger a need for supervision or even attention in extreme cases. Interestingly the impact is felt worst by the mother!

I found one example of the research here. http://www.anaphylaxis.org.uk/knowledgebase/quality-of-life-of-people-with-allergy but there are plenty more. Such research is always small scale as few people of that age want to volunteer for research on something they’re generally trying to put to the back of their mind so I wouldn’t be too quick to dismiss it on that alone. Few people volunteer for research anyway and qualitative stuff can be especially onerous for all concerned. 

I represented at the UT a few years ago in an appeal concerning a child with a nut allergy.  He had no award from FtT and it boiled down to whether he could deal with a serious allergic reaction without assistance.  The main factors were his age and, as someone gets older, their particular ability to deal with the situation appropriately.  Judge Mesher allowed the appeal and sent it back to FtT who awarded MRC/LRM.  The boy I represented was 10 and accepted as unable to administer an Epipen himself.  The issue is clearly one of supervision.

The reference is CDLA/711/2010 but it is not on the UT website. 

Anne, or indeed anybody else, I can send you a copy if wish but I need your email address - I don’t seem to be able attach it here in the form it is in but I think I can forward it to you. 

Tony

Tony - if you email it to rightsnet or direct message it to me we can put it up and also put it in our resources section

Daphne -I don’t seem to be able to use the direct message route as I can’t attach it.  Can you give me your actual email address so that I can forward it to you?

Tony

emailed you direct tony - what was the problem you had attaching?

CDLA/711/2010 added to our archive section here - http://www.rightsnet.org.uk/resources/disability-living-allowance

Thanks Tony

Heads up: the claimant’s name at the bottom of paragraph 15 hasn’t been redacted.

Thanks Jos - have amended, rescanned and uploaded new version which is in our archive - link as in above post

Thanks Jos and Daphne - I went through it twice to make sure!